Alhaji Ibrahim Muhammed V. Nuhu Umar & Ors. (2005)
LawGlobal-Hub Lead Judgment Report
BABA ALKALI BA’ABA, J.C.A.
This is an interlocutory appeal against the ruling of the High Court of Justice, Kaduna, Kaduna State, delivered on 20/11/2000, by M. L. Mohammed, J, sitting in the Zaria Judicial Division. The appellant herein is the plaintiff at the lower court where he instituted an action against the defendants now respondents, claiming the following reliefs:-
“1. A declaration that the plaintiff is the bona fide owner and proprietor of Al-Fidrah Nursery and Primary School, situated at No.86, Rimin Tsiwa, Zaria city, Kaduna State.
- A declaration that the plaintiff as the owner and proprietor of Al-Fidrah Nursery and Primary School, is entitled to management and control of the said School, including its funds, staff, public, building and any other property.
- An order compelling the defendants to render an account of all funds and money collected in the name of Al-Fidrah Nursery and Primary School from January 2000 to date and payment over to the plaintiff.
- An order compelling the defendants to surrender and deliver up possession of all documents, file etc, of Al-Fidrah Nursery and Primary School to the plaintiff.
- An order of perpetual injunction restraining the defendants their privies, servants, employees and/or agents from interfering with the management and control of the affairs and properties of Al-Fidrah Nursery and Primary School.
- An order of perpetual injunction restraining the defendants, their privies, servants, employees and/or agents from entering the office and classrooms for the purpose of collecting funds or School fees from pupils or any other person or opening new branches for the same purpose or otherwise managing the affairs and properties of the said Al-Fidrah Nursery and Primary School.”
The writ of summons was filed on 31st day of August, 2000 and endorsed by the Registrar on the same date. On 11th day of September, 2000, the appellant filed a motion on notice praying for the following orders:
“An order of an interlocutory injunction restraining the defendants/respondents, their privies, servants, employees and agents from collecting or continuing to collect the funds, money or School fees and in any other manner interfering with the control and management of the property of Al-Fidrah Nursery and Primary School situates at No.86, Rimin Tsiwa, Zaria city pending the determination of the substantive suit.
And for such further order(s) as this Hon. Court may deem fit to in the circumstance.”
The motion was supported by a seven paragraph affidavit. The respondents filed a counter-affidavit of seven paragraphs. After hearing the arguments and submissions from the applicant and the respondents’ counsel, the learned trial Judge, at page 47 of the record, held,
“This court has considered the submission of the 2 learned counsel and the affidavit before it including various exhibits. There are so many serious conflicts in the affidavit of the parties which can only be thrashed out through calling oral evidence as affidavits contained averments and strenuous denials on both sides and going into these at present, will amount to going into substantive suit.
In the interest of pupils of the School (subject matter), which is paramount by the provisions of order 46 of the High Court (Civil Procedure) Rules, 1987, this court hereby vacates in its order obtained ex parte dated 31/8/2000,refuses this application and orders that the status quo ante bellum be maintained pending the determination of the substantive suit.
The court also orders accelerated hearing in this suit.”
Dissatisfied with the decision the appellant appealed to this court on four grounds of appeal contained on his Notice of appeal dated 12/10/2001, contained at pages 48-49 of the record. The grounds of appeal are as follows:-
“GROUNDS OF APPEAL
- The ruling of the learned trial High Court Judge is unreasonable, unwarranted and can not be supported having regards to the weight of evidence. (Ground one).
- The learned trial Judge erred in law when she delivered her ruling without evaluating the affidavit evidence before the court and that has occasioned a miscarriage of justice.
Particulars
(i) In law it is primary duty of the trial court to evaluate the affidavit evidence before it in respect of an interlocutory application as in this case.
(ii) That trial court instead of evaluating the affidavit evidence before it ended up in saying “This court has considered the submissions of the learned counsel and the affidavits before it including the various Exhibits.”
(iii) The failure of the trial court to evaluate the affidavit evidence before it led the court to refuse the application on the one hand and ordered that status quo ante bellum be maintained on the other.
(iv) The facts deposed to in support of the application had irresistibly shown that application has merits and ought to be granted.
- The learned trial judge erred in law when she failed to exercise her discretion judiciously and judicially in refusing the application for the injunction.
Particulars
(i) The trial court failed totally to consider and be guided by the well known governing principles for the grant or refusal of an application for injunction as in this case.
(ii) The trial court refused to take into consideration that, the Applicant has a legal right worthy of protection by the grant of the application, that there is serious question to be tried and that the balance of convenience is in favour of the Appellant.
- The learned trial judge erred in law when she failed to resolve the conflicts (if any) in the affidavit evidence before her by calling oral evidence before refusing the application.
Particulars
(i) In law conflicts in affidavit evidence can be resolved by calling oral evidence.
(ii) The trial court did not even explain how the oral evidence if called will amount to going into the substantive suit.
(iii) That the trial court failed of conflicts in the affidavits before it that can only be resolved by calling oral evidence.
(iv) That the failure of the trial court to resolved the conflicts in the affidavits (if any) led the court to draw up a wrong conclusion and understanding of the merit of the Appellant’s application.”
The appellant in the appellants’ brief dated 20/9/2002, filed same date formulated two issues for determination in this appeal as follows:-
“1. Whether from the affidavit evidence and the exhibits before the trial court which that court failed to properly consider and evaluate, the trial court was right to have refused the application for interlocutory injunction on the one hand and yet made an order for the status quo ante bellum, to be maintained pending the determination of the substantive suit on the other, for the reason that “there were so many serious conflicts in the affidavits of the parties which can only be resolved by calling oral evidence and going into these at present would amount to going into the substantive suit”.
- Whether the learned trial judge properly exercised her discretion judicially and judiciously in refusing the plaintiff’s/appellant’s application for interlocutory injunction especially having regards to the laid down principles of law governing the grant or refusal of an interlocutory injunction.”
The respondents did not file their respondents brief even though they were duly served with appellant’s brief on 7/10/2002 as shown by the proof of service.
The appeal came up for hearing on 9/2/05 and it was heard on the appellant’s brief alone as the respondents did not file their brief of argument and were absent and not represented even though they were duly served. The appeal was heard in accordance with the provisions of order 6 rule 10 of the Rules of this court. The learned counsel for the appellant merely adopted and relied on the appellant’s brief without advancing any oral argument.
Arguing the appeal in the appellant’s brief, B. Babaji, Esq, learned counsel for the appellant in the appellant’s brief dated 20/9/2002, filed same date on issue number one submitted that having regard to the affidavit evidence and exhibits in support of the application, the refusal of the trial court to grant the interlocutory injunction and ordering that status quo bellum be maintained was unjustified and unwarranted especially that the learned trial Judge did not make any effort of considering and evaluating the affidavit evidence and the exhibits before the court.
It is further submitted by the learned counsel for the appellant that the trial court laboured under a mistake of law and failed to properly consider and evaluate the relevant affidavit evidence and exhibits before it. Relying on the authority of Sha VS. Kwan (2000) 5 S.C.N.J. 101 at 119, he contended that the trial Judge has woefully failed to discharge his primary duty and functions of evaluating the affidavit evidence before it as required by law and that has occasioned a miscarriage of justice against the plaintiff/appellant.
On issue number two as to whether the learned trial Judge properly exercised his discretion judicially and judiciously in refusing the plaintiff/appellant’s application, for interlocutory injunction having regard to the laid down principles of law governing the grant of interlocutory injunction, it is submitted that the learned trial Judge clearly failed to be guided by the general principles of law governing the grant of an interlocutory injunction. The learned counsel for the appellant stated that the trial Judge could not be said to have exercised its discretion judicially and judiciously by refusing the application. He cited the case of Ahmadu vs. Attorney Genera/ Rivers State (1996) 1 NWLR (Pt.459) 230 at 248 in support of his submission.
Learned counsel for the appellant further submitted that the grant or refusal of an interlocutory injunction is at the discretion of the court but that the discretion must be exercised judicially and judiciously, citing several cases in support of his submission.
In conclusion, learned counsel for the appellant urged the court to resolve all the two issues for determination in favour of the appellant.
Having carefully examined the two issues formulated for determination by the appellant in this appeal, I find that issue number two is more encompassing and sufficient enough for the determination of this appeal. I therefore, adopt it for the determination of this appeal.
Since the learned trial Judge relied on the affidavit and the counter-affidavit in his ruling on the application, it is pertinent to reproduce the paragraphs of the affidavit and counter-affidavit that I consider relevant in this judgment. The affidavit in support of the application was deposed to by one Mrs. Talatu Usman, of B. Babaji & Co., Zaria, a Litigation Secretary in the Chambers of B. Babaji & Co., the solicitor to the applicant/appellant. The paragraphs of the affidavit that I consider relevant are as follows:-
“3. That I have been informed by the plaintiff/applicant and which information I verily believe to be true as follows:-
(a) That since 1987, he established an Islamiyyah School under his control, management and ownership at No.86 Rimin Tsiwa, Zaria city.
(b) That in November, 1993 the said Islamiyyah School was replaced by Al-Fidrah Nursery and Primary School, under the control, management and ownership of the Applicant and situates at No.86 Rimin Tsiwa, Zaria city.
(c) That in 1993/94, the plaintiff/applicant as the proprietor and owner of the said Al-Fidrah Nursery and Primary School applied to Ministry of Education Kaduna for formal permission to establish a Nursery and Primary School bearing the name of Al-Fidrah Nursery and Primary School.
(d) That upon the approval of the plaintiff’s application, the Commissioner of Education, Kaduna State issued to the plaintiff a Certificate of consent to establish and operate Al-Fidrah Nursery and Primary School. The photocopy of the Certificate of consent dated 2/9/98 is hereby attached as Exhibit ‘A’.
(e) That since November, 1993 when the School was established, the plaintiff has been financing, managing and controlling the affairs and properties of the said School without any hindrance or interference from any person or group of persons until January, 2000 when the Defendants/Respondents and their privies supported to have dismissed the plaintiff/applicant as the manager and owner of the said School and thereafter took over the control and management of the said School under what they called Parer Association.
(f) That the Defendants/Respondents assigned to themselves the role of Caretaker Committee for the School, whereof, the 1st Respondent is the Chairman, the 2nd Respondent is the Secretary- General, the 3rd Respondent is the Treasurer, the 4t Respondent is a Member/Trustee and the 5th
Respondent is a Member.
(g) That after all efforts to settle this dispute out of court over the subject matter of this case which is the ownership control and management of Al-Fidrah Nursery and Primary School, have failed, hence the filing of this suit and this application.
(h) That presently the Defendants/ Respondents are going into the School, disturbing the Teachers, the Pupils and interfering with the management and control of the School in the name of Certificate Committee of Parent Association which association is never registered under any law of the land.
(i) That the said Parent Association is never the owner or proprietor of the School.
(j) That the Defendants/Respondents have been parading themselves to the public, Teachers of the School and Pupils that they and not the plaintiff are entitled to collect funds, School fees to control and manage the affairs and properties of the said Al-Fidrah Nursery and Primary School.”
The counter-affidavit was deposed to by one Mrs Nurat Lawal, of No.14, Park Road, Zaria, a Litigation Secretary in the Chambers of Idris Ibrahim and Co., Solicitors to the defendants/respondents. The averments in the counter-affidavit that I consider relevant are as follows:-
“4. That I was informed by the Defendants/Respondents while briefing Barrister Idris Ibrahim Esq., in Chambers on 19/9/2000 at about 3.45pm and I verily believe him to be true as follows:-
(a) That paragraphs 3(a), (r) of the Applicant’s affidavit are not true and same are hereby countered as follows:-
(i) That the School i.e Al-Fidrah Nursery and Primary School was founded in 1993 by the Parents Association and financed by parents through:-
(a) Donations from parents and well wishers.
(b) Development levy by parents, and
(c) Building levy by parents.
(ii) That apart from School fees, the above are basically sources through which the School is financed.
(iii) That after the establishment of the School, the Applicant was elected as the Chairman, Board of Governors of the School in 1993.
(iv) That as Chairman, Board of Governors, the Applicant was vested with the responsibility of the Registration of the School as a result of which the Applicant used his own address and signed as Manager on the Registration Form. The said Registration Form is hereby annexed and marked Exhibit ‘A’.
(v) That the current School premises does not belongs to the Applicant as it was donated by one Ibrahim Aminu, a philanthropist.
(vi) That the address used on the Registration by the Applicant belongs to the Applicant only while the School is not situated at the said address.
(vii) That the School belongs to the Parents Association and not the Applicant, as he merely signed the Registration Form, as Manager/Proprietor just to fill the vacuum because no column was provided for Chairman, Board of Governors on the Form.
(viii) That the office of Manager does not exist at all in the School as there is nothing like the Manager in the School.
(ix) That when the Applicant was the Chairman, Board of Governors he called for a meeting and at the meeting the house was dissolved and a new Caretaker Committee was put in place. A copy of the resolution of the said meeting is hereby annexed and marked as Exhibit ‘B’.
(x) That by this new Election, the Applicant was removed as the Chairman, Board of Governors of the School.
(xi) That the Applicant is no longer holding any position in the School as he was removed as Chairman on 23/1/2000.
(xii) That since this period new members of the Caretaker Committee have been running the School up to May, 2000 when the Applicant took the new Caretaker Committee to the State Security Service (SSS) and the SSS referred the matter to the Security Council, Zaria Local Government.
(xiii) That after thorough investigation, the council became convinced that the School belongs to the Parents Association.
(xiv) That the Security Council, Zaria Local Government therefore directed that both the Principal, Headmaster of the School as well as the new Caretaker Committee should continue to manage the School.
(xv) That it was on this basis that the Applicant now resort to litigation.
- That it shall be in the interest of justice to refuse the application.”
As it could be seen from the averments of the affidavit and counter-affidavit, herein reproduced, there is a serious dispute over the ownership, and the right of management and control of Al-Fidrah School situates at No.86, Rimin Tsiwa Zaria, the subject matter of the action instituted by the appellant against the respondents at the trial court.
The appellant claims ownership of the School which according to him, he acquired since 1987, and that since then it has been under his control and management. The appellant also claims that since November, 1993 when the School was established, he has been financing, managing and controlling the affairs and properties of the School without any hindrance from any person or group of persons.
According to the respondents on the other hand, the School, Al-Fidrah, consisting of a Nursery and Primary School, was founded in 1993 by the Parents Association and financed by parents through donations by parents and well wishers. However, the appellant was elected the Chairman Board of Governors in 1993 and in that capacity he was vested with the responsibility of registering the School for which he used his personal address in registering the School, as shown on the Form, marked Exhibit “A” also relied upon by the appellant in paragraph 3(d) of the appellant’s affidavit in support of his application. The respondents denied appellant’s claim of ownership of the School and asserted that the premises of the School was donated by one Ibrahim Aminu, a philanthropist which now belongs to the Parents Association.
The respondents stated that the appellant was removed at an election as the Chairman of Board of Governors on 23/1/2000 and replaced by another person and that since his removal, the new Caretaker Committee has been running the School, AI-Fidrah, which the appellant claims as his School.
It can therefore not be disputed that there are serious conflicts in the two affidavits, the affidavit in support and the counter-affidavit relied upon by the parties in respect of the application for interlocutory injunction before the trial court. In the Supreme Court case of University Press vs. I.K. Martins () Ltd. (2000) 4 NWLR (Pt.654) 584 at 602 the Supreme Court of Nigeria, held that the court below rightly observed that there was conflict in the affidavit evidence of the parties on the crucial issue which should be resolved by calling oral evidence. See Falobi vs. Falobi (1976) 910 S.C.1 and Akinsete vs. Akindutire (1966) 1 All NLR 147.The Supreme Court has counselled for caution times without number, that the trial court as well as the intermediate court should desist from making positive pronouncement touching on the substantive matter while they are only engaged in determination of interlocutory matters before them. Surely, this practice is unacceptable because it prejudges the real matter in controversy even before argument by learned counsel have been marshalled on the substantive issue. Ordinarily where the trial judge has in fact delved into and determine the substantive issue when considering an interlocutory matter, it is clear that even if he has rightly determined the interlocutory matter before him, he can not dispassionately revisit the substantive issue and be expected to have an opposite view from the original stand on the matter. See University Press Ltd. vs. Martins page 595 (Supra).
In my humble opinion, the learned trial Judge, acted rightly in exercising caution as trial and intermediate courts are enjoined to do while dealing with interlocutory matters. I am in complete agreement with the learned trial Judge that there are serious conflicts in the affidavit and counter-affidavit relied upon by the parties and that resolving the conflicts by oral evidence would definitely amount to delving into the substantive matter while hearing the interlocutory application.
It is also held that an appellate court in reviewing the exercise of discretion by a lower court should not substitute its own discretion for that of the lower court, except where it is satisfied that the discretion was exercised arbitrarily or illegally or without due regard to all the necessary considerations having regard to the circumstances of a particular case. See Nzeribe vs. Dave Engr. Co. Ltd. (1994) 8 NWLR (Pt.361) 124 at 148-149; United Spinners Nig. Ltd. vs. Chartered Bank Ltd. (2001) 14 NWLR (Pt.732) 195 at 219.220.From the foregoing, I hereby resolved issue number two, as to whether the learned trial Judge properly exercised his discretion judicially and judiciously in refusing the plaintiff/appellants application for interlocutory injunction, in the affirmative. I also agree with the learned trial Judge that the appropriate order to make in the circumstance is the order accelerating the hearing of the substantive suit which the learned trial Judge made.
In the result, this appeal fails and is hereby dismissed. I award costs assessed at N5,000.00 in favour of the respondents against the appellant.
Other Citations: (2005)LCN/1703(CA)
